With law firms having seen steep increases in multi-million dollar legal malpractice claims over the past few years, lawyers must be even more diligent in managing the increasing number and complexity of issues confronted in client representation. Why? According to one insurance trade publication, both claims and payouts are climbing.
In 2013, Eileen Garczynski, senior vice president of insurance broker Ames & Gough, discussed the trend with Insurance Journal. “There’s no question that the number of large legal malpractice claims is increasing,” Garzynski said. She attributed this increase to issues of economic downturn, mergers and acquisitions, and lateral movement of attorneys between law firms. In addition, Insurance Journal reported that these claims are being fueled by “…the growing complexity and sheer size of the underlying matters being handled by law firms as well as the higher defense costs associated with complex malpractice suits.”
An example of this complexity may be found in Women’s Integrated Network Inc. v. Anderson Kill PC, currently before the Supreme Court of the State of New York. What began as a wrongful termination suit filed against WIN turned into a $10 million claim against their attorneys. In a January 2, 2015, article titled “Legal Malpractice Cases to Watch in 2015,” Law360 highlighted this case and quoted defense attorney Kevin Rosen speaking generally on the question of professional liability. “There will always be cases where somebody made a mistake or missed a deadline, but that is only the beginning of the inquiry,” Rosen said. “For example, would the client have won if a trial court or appellate deadline had not been missed?”
Complexity is also an issue for the court reporters involved in contemporary litigation. For instance, just a few years ago, a court reporter needed only to use her steno machine and a Dictaphone to transcribe her stenographic notes from a deposition. Carbons were removed from multi-layered typing paper, transcript covers were applied, and bam, into an envelope and out to the post office they’d go for delivery to clients.
Now days, a realtime court reporter needs to hone her skills long before entering a conference room so that a readable realtime rough draft can be simultaneously accessed by attorneys and their legal teams at the instant testimony is given. Aside from the IT requirements for assisting clients with connecting their laptops or smart devices to realtime feeds, that same reporter needs to juggle official court reporter duties such as pre-marking exhibits, swearing in a witness, and securing transcript orders. The latter is rarely known anymore by the attorney attending the deposition, most probably because of the complexities related to software applications back at her office. So once a final transcript has been completed by the court reporter, her office personnel have to sort through the multiple formats and preferences from which the client can choose to have transcripts, exhibits, and video delivered into their law firm’s litigation workflow systems.
So how are attorneys and court reporters to stay on top of increasingly complex issues in the legal profession? CompuScripts Court Reporters recently became aware of Dr. Atul Gawande’s New York Times Best Seller, “The Checklist Manifesto: How to Get Things Right.” In this book, the author states, “The volume and complexity of what we know has exceeded our individual ability to deliver its benefits correctly, safely, or reliably.” What he suggests as the best way to organize such complex knowledge is the development of checklists.
A whole book about checklists? Yes. Gawande looks at his own subspecialty in surgery, as well as aviation and architecture, to illustrate the benefits of checklists in a world where even seasoned experts struggle to execute all the tasks presented, even though they have received more training and also have available more advanced technologies than ever before. Gawande suggests, “Checklists seem able to defend anyone, even the experienced, against failure in many more tasks than we realized.”
If you, like CompuScripts, are set on getting things right, we recommend you read “The Checklist Manifesto” by Atul Gawande.
Insurance Journal: “Law Firms See Rise in Malpractice Claim Frequency, Severity.” June 27, 2013.
Broady, Gavin. “Legal Malpractice Cases to Watch in 2015,” Law360., January 2, 2015.
Gawande, Atul. “The Checklist Manifesto: How to Get Things Right.” New York: Metropolitan, 2010.